[8]
In argument, on the merits of the application, Mr. Smuts, S.C., contends that, plainly, the plaintiff’s
discovery in his initial discovery affidavit was hopelessly inadequate as is acknowledged by the further discovery provided by the
plaintiff, following the Rule 35(3) notice. The documentation sought, so submits Mr. Smuts, S.C., relates to the defences of truth
and fair comment which were raised in mid-2006. The amendment to the defendant’s plea, continues Mr. Smuts, S.C., has no bearing
at all upon the plaintiff’s failure to make a full discovery. He adds that the Rule 35(3) notice was necessitated by the plaintiff’s
initial inadequate discovery when this was examined by the defendant’s newly appointed legal representatives, about a month
before the trial date. He impresses upon the Court that the documentation in question is relevant as it has a direct bearing upon
the extent of the plaintiff’s practice and the extent to which he (allegedly) conducted his private practice during hours he
was required to render services to the State. It is submitted that, once it is correctly acknowledged that the appointment books
must be produced, then, the receipt books in respect of professional attendances represented by those appointments for private patients
during the period in question, must equally be relevant as they clearly relate to the self-same matter in dispute.
[9]
It is further submitted that similar considerations arise with respect to invoices pertaining to
professional attendances as well as to the rest of the documentation sought.
[10]
Privilege, though it features prominently in the defendant’s heads of argument, is sparingly canvassed
in oral argument. This is obviously so because of Ms Bassingthwait’s intimation that she would not pursue the ground of privilege
as her basic ground for objection is that all the documents in issue are irrelevant.
[11]
Ms Bassingthwait quite properly acknowledges that documents that are relevant, directly or indirectly,
must be produced. It is for the defendant, she submits, to satisfy the Court that the documents he requires to be discovered are
relevant. She claims, however, that the defendant has failed to show that the said documents are relevant to the matter. Hence, she
implores the Court to rule that all the documents the defendant seeks to be discovered are irrelevant for the reason that they do
not (allegedly) contain any information that can be of assistance to the Court.
[12]
The learned counsel for the plaintiff contends that it is not the extent of the plaintiff’s private
practice that matters; what matters is: to what extent did his private practice encroach on the State’s business. As previously
shown, the submission by Mr. Smuts, S.C., in this regard, is quite the contrary.
[13]
I now turn to consider what is clearly the core issue in casu, namely: the relevance or otherwise of the documents that the defendant requires the plaintiff to disclose.
[14]
It is trite law that relevancy is determined from the pleadings and not extraneously therefrom. Hence,
a party may only obtain inspection of documents relevant to the issues on the pleadings: Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others 1999 (2) SA 279 (T) at 311A. The meaning of relevance is circumscribed by the requirement in sub-rules (1) and (3) of Rule 35 that the document (or
tape recording) relates to, or may be relevant to, “any matter in question.” The “matter in question” is determined from the pleadings. In Swissborough Diamond Mines, supra, at 316D-G, Joffe, J., made reference to the test for relevance in these terms:
“The test for relevance, as laid down by Brett LJ in Compagnie Financiere et Commerciale du Pacifique v Pervivian Guano Co. 1882 11 QBD 55, has often been accepted and applied. See, for example, the Full Bench judgment in Rellams (Pty) Ltd. James Brown & Hamer Ltd.
1983 (1) SA 556 (N) at 564A, where it was held that:
‘After remarking that it was desirable to give a wide interpretation to the words: ‘a document relating to any matter in question
in the action’, Brett LJ stated the principle as follows:
‘It seems to me that every document relates to the matter in question in the action in which, it is reasonable to suppose, contains
information which may – not which must – either directly or indirectly enable the party requiring the affidavit either
to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly”
because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit
either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of
enquiry which may have either of these two consequences.’ ”
See also Continental Ore Construction v Highveld Steel & Vanadium Corporation Ltd. 1971 (4) SA 589 (W) at 596H; and Carpede v Choene NO and Another 1986 (3) SA 445 (O) at 452C-J.
[15]
On the basis of the principle enunciated by Brett, LJ, in Compagnie Financiere et Commerciale du Pacific, supra, it would appear reasonable to suppose that each of the documents in issue prima facie contains information that may, either directly or indirectly, enable the defendant either to advance his own case or to damage the
case of his adversary, to wit, the plaintiff.
[16]
The oath of a party impugning the relevance of a document or documents is prima facie conclusive, unless it is shown, on one or other of the grounds that will be referred to in a little while, that the Court ought to
go behind that oath.
[17]
The test of discoverability and the basis upon which the Court ought to go behind the oath, as set out
in Continental Ore Construction, Supra, at 598D-E and 597H – 598A, respectively, were quoted (seemingly with approval) in South African Sugar Association, supra, at 244I ? 245C, in these terms:
“The test of discoverability or liability to produce for inspection where no privilege or like protection is claimed, is still that
of relevance; the oath of the party alleging non-relevance is still prima facie conclusive, unless it is shown on one or other of
the bases referred to above that the Court ought to go behind that oath; and the onus of proving relevance, where such is denied,
still rests on the party seeking discovery or inspection… Rule 35(3) could never have been intended to mean that mere subjective
belief (or even that a mere statement as to the existence of such belief) by the party seeking further discovery, as to the relevance
of additional documents, is by itself enough to require the other party on notice to make available for inspection such of those
documents as are in his possession.
‘The bases on which the Court ought to go behind the oath were set out as follows at 597H – 598A:’
‘The Court will go behind the affidavit only if it is satisfied:
(i)
from the discovery affidavit itself; or
(ii)
from the documents referred to in the discovery affidavit; or
(iii)
from the pleadings in the action; or
(iv)
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